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HILL v. FLEMING

December 23, 1958

Sigmund HILL
v.
Arthur S. FLEMING, Secretary of Health, Education and Welfare



The opinion of the court was delivered by: MARSH

Pursuant to § 205(g) of the Social Security Act, as amended, 42 U.S.C.A. § 405(g), plaintiff seeks a review of a decision of the Secretary of Health, Education and Welfare denying him a disability freeze under § 216(i) of the Act, as amended, 42 U.S.C.A. § 416(i). The defendant moved for summary judgment. A copy of the transcript of the record of the proceedings before the Social Security authorities was filed and under § 205(g) the court has power to adjudicate the issues on this record and enter a judgment 'affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing.'

On March 25, 1955, plaintiff filed his application with the Bureau of Old Age and Survivors Insurance of the Social Security Administration for the purpose of establishing a period of total and permanent disability from November, 1945, continuing to the present time. *fn1" The Appeals Council found plaintiff's special earnings test 'terminated at the end of the first calendar quarter of 1948'. It stated that 'it is necessary to evaluate the severity of claimant's disabilities prior to March 31, 1948, and determine whether or not he was 'disabled' at that time and continuing up to March 1955 when he filed his application'. It was decided that plaintiff was not entitled to the period of disability for which he made application in that his 'impairments were not so severe when he last met the earnings requirements in the Act, or as of the date when he filed application to establish a period of disability, to prevent him from engaging in any substantial gainful activity'.

 Section 205(g) of the Social Security Act, as amended, 42 U.S.C.A. § 405(g), provides:

 '* * * The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * *.'

 Under that provision, as well as the Administrative Procedure Act, 5 U.S.C.A. § 1009, it is the duty of the court to ascertain 'whether on the record as a whole there is substantial evidence to support the Secretary's findings of fact'. Goldman v. Folsom, 3 Cir., 1957, 246 F.2d 776, 778. In that case the Court of Appeals stated:

 'In discharging that duty we must keep in mind, as adjured by the Supreme Court, that 'courts must now assume more responsibility for the reasonableness and fairness' of decisions of federal agencies 'than some courts have shown in the past' and 'Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function.' Universal Camera Corp. v. National Labor Relations Board, 1951, 340 U.S. 474, 490, 71 S. Ct. 456, 466, 95 L. Ed. 456.'

 See also Boyd v. Folsom, 3 Cir., 1958, 257 F.2d 778, 781; Jacobson v. Folsom, D.C.S.D.N.Y.1957, 158 F.Supp. 281; Wilson v. Folsom, D.C.D.N.D.S.E.D.1957, 151 F.Supp. 195.

 It is undisputed that plaintiff was born on February 23, 1896 in Hungary. He came to the United States in 1913 and worked as a machinist until November 3, 1945, when he injured his back while doing heavy work as a machine operator at Westinghouse Electric Company. In May, 1946, he attempted to resume this work but had to discontinue after four days. There is some evidence that he was reinjured.

 Plaintiff says his education ended with the sixth grade in Hungary; and although he can read English, he has difficulty in writing. He married and had a large family. There is no evidence that he possessed qualifications for any type of work other than a machinist.

 Plaintiff was not represented by counsel at the hearing before the Referee, and his testimony reflects that he is not very coherent and had a very limited notion of his burden of proof. However, the Referee, as well as the Appeals Council after remand on motion of the United States Attorney, aided plaintiff considerably in collecting the records of his long disability. See § 205(b), 42 U.S.C.A. § 405(b).

 Plaintiff was the only witness at the hearing. None of the numerous doctors who attended him were examined, the Referee and Council being content with their written reports and certain hospital records. These medical reports cover the period from shortly after his injury in 1945 to September, 1957.

 It is undisputed that during the entire period, except for the four days mentioned, plaintiff did not engage in any gainful occupation. He testified he could not do any light work, that he was in bed a great part of the time, that he had shortness of breath, continuous pain in his back and legs, limitation of motion in back and legs, and could not stand transportation in street cars and automobiles. He was able to move about and spent 5 or 10 minutes in his yard in warm weather. None of this testimony was contradicted. The Council found that plaintiff 'felt like he could engage in light work', but the only evidence of that is he asked his employer for a light job to 'sit at the gate'. He did not get the job. Under the evidence he certainly could not have functioned competently as a policeman or guard, or even as a 'gate sitter'.

 It is undisputed that he received medical attention immediately after his injury and almost continuously thereafter to the present time. He was in the service of Dr. Paul Steele, an eminent Pittsburgh orthopedic surgeon, from August, 1946 to July, 1949. For one month in 1947, he was hospitalized by Dr. Steele in the Allegheny General Hospital. He was studied at the Falk Clinic from January to March, 1955. He was hospitalized at St. John's Hospital for 11 days in 1956.

 It is undisputed that plaintiff received workmen's compensation from December, 1945 to March, 1946 for total disability, and from August, 1946 to September, 1951 for partial disability, -- 300 weeks, ...


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